After the Second World War it was decided to use the Alien Registration Act against the American Communist Party. On the morning of 20th July, 1948, Eugene Dennis, the general secretary of the American Communist Party, and eleven other party leaders, included William Z. Foster, Benjamin Davis, John Gates, Robert G. Thompson, Gus Hall, Benjamin Davis, Henry M. Winston, and Gil Green were arrested and charged under the Alien Registration Act. This law, passed by Congress in 1940, made it illegal for anyone in the United States "to advocate, abet, or teach the desirability of overthrowing the government".
The trial began on 17th January, 1949. As John Gates pointed out: "There were eleven defendants, the twelfth, Foster, having been severed from the case because of his serious, chronic heart ailment." The men were defended by George W. Crockett.
It was difficult for the prosecution to prove that the eleven men had broken the Alien Registration Act, as none of the defendants had ever openly called for violence or had been involved in accumulating weapons for a proposed revolution. The prosecution therefore relied on passages from the work of Karl Marx and other revolution figures from the past. When John Gates refused to answer a question implicating other people, he was sentenced by Judge Harold Medina to 30 days in jail. When Henry M. Winston and Gus Hall protested, they were also sent to prison.
The prosecution also used the testimony of former members of the American Communist Party to help show that Dennis and his fellow comrades had privately advocated the overthrow of the government. The most important witness against the leaders of the party was Louis Budenz, the former managing editor of the party's newspaper, The Daily Worker.
Another strategy of the prosecution was to ask the defendants questions about other party members. Unwilling to provide information on fellow comrades, they were put in prison and charged with contempt of court. The trial dragged on for eleven months and eventually, the judge, Harold Medina, who made no attempt to disguise his own feelings about the defendants, sent the party's lawyers to prison for contempt of court.
After a nine month trial the leaders of the American Communist Party were found guilty of violating the Alien Registration Act and sentenced to five years in prison and a $10,000 fine. Robert G. Thompson, because of his war record, received only three years. They appealed to the Supreme Court but on 4th June, 1951, the judges ruled, 6-2, that the conviction was legal. It was later discovered that Louis Budenz was paid $70,000 for his information during the trial.
Justice Felix Frankfurter argued: The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. For his accusations were not impersonal. They concerned matters in which he personally was deeply engaged... No judge should sit in a case in which he is personally involved... At frequent intervals in the course of the trial his comments plainly reveal personal feelings against the lawyers.... Truth compels the observation, painful as it is to make it, that the fifteen volumes of oral testimony in the principal trial record numerous episodes involving the judge and defense counsel that are more suggestive of an undisciplined debating society than of the hush and solemnity of a court of justice. Too often counsel were encouraged to vie with the court in dialectic, in repartee and banter, in talk so copious as inevitably to arrest the momentum of the trial and to weaken the restraints of respect that a judge should engender in lawyers... Throughout the proceedings... he failed to exercise the moral authority of a court possessed of a great tradition.
Justice William Douglas agreed: "I agree with Mr. Justice Frankfurter that one who reads the record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench fo whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly discussion and of ill will and hot tempers."
This decision was followed by the arrests of 46 more communists during the summer of 1951. This included Elizabeth Gurley Flynn, who was also convicted for contempt of court after telling the judge that she would not identify people as Communists as she was unwilling "do degrade or debase myself by becoming an informer". She was also found guilty of violating the Alien Registration Act and sentenced to two years in prison.
In his autobiography, Being Red, the author, Howard Fast commented: "That the jury made a mockery of the months of evidence and came to its verdict of guilty almost instantly tells more about the nature of this trial than a hundred pages of legal evidence. What fell to us - and by us, I mean those of us in the arts - was the question of what we could do in the new conditions of anti-Communist propaganda created by the trial. It was not only the twelve defendants in Foley Square who were under attack; in every trade union where the Communist Party had any influence, Communists and suspected Communists were being attacked and driven from their leadership positions, from the union, and from their jobs. In this, the anti-Communists (many of them in their jobs because of the work and courage of the Communist organizers) in the AFL and the CIO turned and led the hunt against the Communists."
As John Gates pointed out in his book, The Story of an American Communist (1959): "To many in the leadership, this meant that the United States was unquestionably on the threshold of fascism. Had not Hitler's first step been to outlaw the Communist Party? We saw an almost exact parallel."